New U.S. Shipping Co., Ltd and one other (Law Firm Lee Hun-hwan, Attorneys Kim Woo-won, Counsel for the

Seoul Special Metropolitan City Mayor (Bae & Yang LLC, Attorneys Lee Woo-tae, Counsel for the defendant-appellant)

May 26, 2015

Seoul Administrative Court Decision 2013Guhap9922 decided November 20, 2014

1. The judgment of the court of first instance is modified as follows.

A. On March 22, 2013, the Defendant’s order to reduce the number of vehicles listed in the separate sheet 1 and 2 issued by the Plaintiffs on March 22, 2013, is revoked.

B. The plaintiffs' remaining claims are dismissed.

2. 9/10 of the total litigation costs incurred between the Plaintiff New U.S. Transport Co., Ltd and the Defendant shall be borne by the Defendant, the remainder 1/10, respectively, by the said Plaintiff, and 3/4 of the total litigation costs incurred between the Plaintiff Hoho Transport Co., Ltd. and the Defendant shall be borne by the said Plaintiff, and the remainder 1/4

The judgment of the court of first instance is revoked, and each order to reduce the number of vehicles listed in the attached Table 1 issued by the defendant against the Plaintiff New and American Transport Co., Ltd. on March 22, 2013 is revoked.

1. Quotation of the first instance judgment

The reasoning of the court's explanation concerning this case is as follows: (a) part of the grounds of the judgment of the court of first instance [the grounds of disposition] ① the one-month "one-month" is dismissed as "one-month"; and (b) the part below 2. D. "judgment" is the same as the reasoning of the judgment of the court of first instance, and thus, it is cited as it is in accordance with Article 8 (2) of the Administrative Litigation Act and the main sentence of Article 420 of the Civil Procedure Act.

[Supplementary Use]

D. Determination

1) Whether a final judgment violates the binding force or res judicata of the final judgment

A) The purport of the plaintiffs' assertion

The plaintiffs, from November 1, 2007 to November 30, 2007, issued an order to reduce the number of vehicles to the plaintiffs on May 22, 2008 on the ground that the defendant violated the prohibition of use of name by operating a vehicle including some of the vehicles listed in the attached Tables 1 and 2 by a contract method. However, the plaintiffs asserted that since the judgment was rendered against the defendant on the ground that the order to reduce the number of vehicles was unlawful, the part of the vehicle of the same vehicle as the one subject to the previous order to reduce the number of vehicles was against the binding force of the previous final judgment and was unlawful.

B) Relevant legal principles

A disposition of revocation of a disposition of revocation of a disposition of reduction of number of automobiles, etc., which a passenger transport business operator is subject to a disposition of violation of laws and regulations, and a disposition of revocation of such disposition is rendered on the grounds that such disposition is practically illegal, by filing an administrative litigation seeking the revocation of such disposition, and on the grounds of the same reasons as that of the judgment that cannot be the grounds for sanctions, the same as that of the above revocation judgment, shall not be permitted (see Supreme Court Decisions 92Nu2912, Jul. 14, 1992; 89Nu985, Sept. 12, 1989, etc.). Whether the subject matter of a lawsuit is identical or not shall be based on the basic facts of the violation subject to the sanctions, and the normative elements thereof shall also be considered. If the violation is a method or form of business, the same act is expected to be repeated due to the nature of the constituent elements, and thus, the scope of the final and conclusive judgment that a transport business operator continues to engage in the management of the same vehicle for a certain period shall be deemed to constitute a final and conclusive judgment.

C) In the instant case:

In addition to the purport of Gap evidence 14-1 and 2, the defendant issued an order to reduce the number of vehicles owned by the plaintiffs on May 22, 2008 on the ground that "the plaintiff violated the prohibition of use of the name and operated 48 vehicles in the form of a contract system", and the plaintiffs filed a lawsuit seeking revocation of the order to reduce the number of vehicles (Seoul Administrative Court 2008Guhap22549). The above court rendered a favorable judgment against the plaintiffs on July 9, 2009 on the ground that it is difficult to view that the plaintiffs operated the above 48 si because the plaintiffs violated the prohibition of use of the name and operated the above 48 si, it is recognized that the appeal was dismissed on January 27, 2010 and the defendant's appeal against this decision became final and conclusive on May 27, 2010.

According to this, since the act of violation, which was the final and conclusive judgment, is also in violation of the prohibition of use of name, and is identical to the grounds for the disposition of this case and basic factual relations, the validity of the final and conclusive judgment concerning the same vehicle among the violations committed until January 27, 2010, which was the time of closing argument at the appellate court of the final and conclusive judgment, among the grounds for the disposition of this case, shall also affect the violation of this case. However, since all of the violations of this case are not related to the violation subject to the final and conclusive judgment or all of the violations committed from January 28, 2010 to September 14, 2010, it becomes a legitimate ground for disposition.

According to the above evidence, vehicles related to violation committed until January 27, 2010, which was the time of closing argument in the appellate trial of the final judgment among the vehicles listed in the separate sheet 1 and 2, are recognized as the vehicles listed in the separate sheet 3-1. In the case of the Plaintiff New and American Transport Co., Ltd., and the vehicles listed in the separate sheet 3-2. In the case of the Plaintiff Primary Transport Co., Ltd., the two vehicles (hereinafter collectively referred to as “duplicated vehicles”). Therefore, the order to reduce the number of vehicles for overlapping vehicles is not permissible because it conflicts with the binding force of the revocation judgment or res judicata effect of the final judgment, and the Plaintiffs’ assertion

2) Whether the prohibition of use of name has been violated (as to the remaining vehicles other than overlapping vehicles):

A) Determination criteria

Article 12(1) and (3) of the Passenger Transport Business Act provides that “A transport business entity shall not have another transport business entity or a person who is not a transport business entity operate passenger transport business with or without compensation by using all or some of his/her commercial automobiles for business purposes, and a person who is not a transport business entity shall not operate passenger transport business with or without compensation.” The legislative purport of the provision lies in: (a) if a person who has obtained a passenger transport business license operates passenger transport business with or without compensation by using an automobile for business purposes in his/her own or another person’s name, he/she shall be able to operate passenger transport business even without the license requirements prescribed in consideration of the public nature of passenger transport business; (b) if the passenger transport business entity fails to meet the license requirements prescribed in the Passenger Transport Business Act; and (c) if he/she transfers a certain business, he/she may interfere with the order of passenger transport business by restricting the entrustment of passenger transport business; and (c) if so, he/she shall not be held in the name of a transport business entity under the name of another transport business entity.

B) Determination on the part related to Nonparty 1

In addition to the purport of the entire argument in each of the above evidence, it is recognized that the non-prosecutiond employees recruited by Non-party 1 entered into an employment contract with the plaintiffs as employers. The plaintiffs subscribed to the four-party insurance on the premise that they are workers belonging to the plaintiffs, most of the employees deposited transportation income into the plaintiffs company. The plaintiffs also subscribed to mutual-aid insurance and have been maintained for the taxi leased to the non-party 1. The plaintiffs' representative director, non-party 1, non-party 2, non-party 3, and non-party 4 were investigated as violation of the Passenger Transport Business Act (violation of the prohibition on the use of name). The prosecutor was investigated as the reason that "the non-party 1 et al. operated by the contract method but it is difficult to view that the non-party

However, the following facts and circumstances are acknowledged if the purport of the entire argument is added to each of the above evidence.

① Nonparty 1: (a) purchased a certain monthly price for taxi transport employees listed in the separate sheet No. 4 (29) from the Plaintiffs (for example, 70,000 won per day for high-quality taxi employees; and (b) purchased a certain amount of 2.1 million won per month for bad taxi drivers; and (c) thereafter, the Plaintiffs were recruited from other taxi transport employees, which are taxi business entities; (b) purchased an insurance premium under the separate agreement with the Plaintiffs, for the purpose of settling the insurance premium for the taxi transport employees, and (c) the Plaintiffs did not directly collect the insurance premium from the office-based office-based office-based sales employees; and (d) the Plaintiffs did not receive the insurance premium from the office-based office-based sales employees, and (e) the Plaintiffs did not directly collect the insurance premium from the office-based sales employees; and (e) the Plaintiffs did not receive the insurance premium from the office-based sales employees under the separate agreement with the Plaintiffs.

As above, in light of the following: (a) Nonparty 1 leased and managed a taxi by several taxi transportation business entities other than the Plaintiffs; (b) Nonparty 1 managed and recruited, or managed separately from the Plaintiffs in the office of ○○ Dong; (c) the number of drivers employed by Nonparty 1 and their employees employed by Nonparty 1; and (d) Nonparty 1 and their employees borne the costs related to the operation of the taxi; and (c) the degree and purpose of the Plaintiffs’ participation in the operation of the taxi leased to Nonparty 1, it is reasonable to deem that Nonparty 1 independently operated the passenger transport business; and (d) it is difficult to deem that the Plaintiffs merely operated the taxi leased to Nonparty 1 under their general direction and supervision. Accordingly, the Plaintiffs’ assertion that the Plaintiffs did not allow Nonparty 1 to operate the passenger transport business is not acceptable.

C) Determination on the part of the vehicle related to Nonparty 2, Nonparty 3, and Nonparty 4 (hereinafter “Nonindicted 2, etc.”)

In addition to the purport of the entire argument in each of the above evidence, Nonparty 2, etc. also paid a certain amount to the plaintiffs and recruited taxi drivers, and Nonparty 2, etc. are allowed to leave the taxi, and the shift of transport employees recruited by Nonparty 2, etc. was made out of the plaintiffs' garages. The plaintiffs separately manage the daily LPG usage fees and daily entrance fees of the transport employees recruited by the plaintiffs, the regular trucking employees belonging to the plaintiffs, the transport employees directly contracted by the plaintiffs, and the transport employees recruited by Nonparty 2, etc., separately. The plaintiffs did not pay wages to the transport employees recruited by Nonparty 2, etc., and the four major insurance premiums are recognized.

However, the following facts and circumstances are acknowledged if the purport of the entire argument is added to the evidence mentioned above.

① Nonparty 2, etc. did not have a separate office unlike Nonparty 1, and even in a labor contract, the Plaintiff’s car room was prepared in the Plaintiff’s new U.S. transportation company. ② There is no evidence that Nonparty 2, etc. separately prepared books necessary for business management, such as the dispatch day and the operation day, or kept them personally. ③ Nonparty 2, etc. did not receive a taxi from any other taxi transportation business entity other than the Plaintiff’s new U.S. (However, Nonparty 4 received a taxi from the Plaintiff’s new transportation company). ④ Nonparty 2, etc. were 64 vehicles in total for the taxi that Nonparty 2, etc. received from the Plaintiff’s new transportation company, and this is more than 60% of the number of taxi employees recruited or managed by Nonparty 1. On the other hand, the number of taxi employees recruited or managed by Nonparty 2, etc. from the Plaintiff’s new transportation company does not constitute half of the number of passengers recruited or managed by Nonparty 1.

In full view of the fact that Nonparty 2, etc., recruited by Nonparty 2, etc., managed the number of passengers and the method of managing them, the number and operation period of the receiving taxi, and Nonparty 2, etc., as seen earlier, received a non-prosecution decision on the violation of the Passenger Transport Business Act (the violation of the prohibition of use of name), etc., it is difficult to view that Nonparty 2, etc. independently operated passenger transport business without excluding the Plaintiff New Transport Business.

3) Whether the discretion is deviates or abused or not

The court's explanation on this part is identical to the part of the 13th judgment's 13th judgment's 14th judgment's 14th judgment's 14th judgment's 14th judgment's 14th judgment's 14th 2, 3, and 4th judgment's 13th 3th 14th 4th 4th 4th 14th 14th 3th 14th 14th 3th 14th 14th 3th 14th 14th 3th 14th 3th 14th 14th 1th 2th 200's 13th 2nd 13th 13th 2nd 13th 13th 2nd 200's 4th 2nd 200's 1th 2nd 20

4) Sub-committee

Therefore, an order to reduce the number of vehicles listed in the separate sheet 3 among the vehicles listed in the separate sheet 1 and 2 should be revoked illegally (In conclusion, only the portion of the order to reduce the number of vehicles listed in the separate sheet 5 is legitimate).

3. Conclusion

If so, the plaintiffs' claims are justified within the scope of the above recognition, and the remaining claims are dismissed as they are without merit. Since the judgment of the court of first instance is partially unfair, the judgment of the court of first instance is partially accepted, and it is so decided as per Disposition by the assent of all participating Justices on the first instance judgment.

[Attachment List omitted]

Judges Jan Jin-hun (Presiding Judge)